Citation Nr: 1140595
Decision Date: 11/02/11 Archive Date: 11/16/11
DOCKET NO. 06-03 766 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUES
1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral hearing loss disorder.
2. Entitlement to a total disability evaluation based on individual unemployability (TDIU).
3. Entitlement to a rating in excess of 10 percent for atherosclerotic cardiovascular disease status post coronary artery bypass graft associated with type II diabetes mellitus.
4. Entitlement to a temporary total evaluation based on hospitalization for a service-connected disability and/or convalescence for a service-connected disability.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
A. M. Clark, Associate Counsel
INTRODUCTION
The Veteran served on active duty from July 1968 to July 1970.
These matters come before the Board of Veterans' Appeals (BVA or Board) from July 2005 (hearing loss) and October 2009 (remaining claims) rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Montgomery, Alabama.
The Board notes that the Veteran filed an August 2005 notice of disagreement, and a January 2006 statement of the case was issued with respect to an extension of a temporary 100 percent evaluation assigned for his service-connected atherosclerotic cardiovascular disease status post coronary artery bypass graft surgery. However, the Veteran did not file a substantive appeal with this issue. In fact, he limited his January 2006 substantive appeal to only the issue relating to his hearing loss. Moreover, in a January 2006 statement he indicated that he wanted to drop his claim regarding this issue. It is unclear why this issue was subsequently listed on in a March 2009 statement from his representative. As this issue was clearly not appealed, it is not before the Board and will not be addressed further herein.
Moreover, although the Veteran requested a BVA Travel Board Hearing in his January 2006 substantive appeal with respect to his hearing loss claim, in a February 2009 written statement he indicated that he was withdrawing his request for a hearing. Thus, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2011). The Veteran has subsequently requested a BVA Travel Board Hearing or BVA Video Hearing in a September 2010 substantive appeal associated with his claims for TDIU, a rating in excess of 10 percent for atherosclerotic cardiovascular disease status post coronary artery bypass graft associated with type II diabetes mellitus, and entitlement to a temporary total evaluation based on hospitalization for a service-connected disability and/or convalescence for a service-connected disability. Later, in a January 2011 written statement he withdrew his request for a BVA Video Hearing. He withdrew his request for a BVA Travel Board Hearing in an April 2011 written communication. As such, these hearing requests are deemed withdrawn.
The Board additionally notes that although a February 2009 statement of the case listed service connection claims for bilateral upper and lower extremities neuropathy, and entitlement to an increased rating for erectile dysfunction, secondary to his service-connected type II diabetes mellitus, a substantive appeal was not filed with respect to these issues. See 38 C.F.R. § 20.202 (2011). In fact, his claims for bilateral upper and lower extremity neuropathy were eventually granted in a January 2011 rating decision.
The issues of entitlement to a TDIU, a rating in excess of 10 percent for atherosclerotic cardiovascular disease status post coronary artery bypass graft associated with type II diabetes mellitus, and entitlement to a temporary total evaluation based on hospitalization for a service-connected disability and/or convalescence for a service-connected disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. In a decision dated in May 2004, the RO denied a service connection claim for a bilateral hearing disorder on basis that the evidence failed to show that there was any relationship between the his current hearing loss and service; the Veteran did not appeal the May 2004 decision within one year of being notified.
2. The evidence received since the May 2004 RO decision, when viewed by itself or in the context of the entire record, does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim of entitlement to service connection for a bilateral hearing loss disorder.
CONCLUSIONS OF LAW
1. The May 2004 rating decision, which denied the Veteran's service connection claim for bilateral hearing loss is final. 38 U.S.C.A. § 7105 (West 2002), 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103 (2011).
2. The evidence received subsequent to the May 2004 RO decision is not new and material, and the requirements to reopen a claim of entitlement to service connection for a bilateral hearing loss disorder have not been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. VA's Duties to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011).
Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision issued by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486.
With respect to the claim to reopen, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006).
To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Id.
The notice letter provided to the Veteran in December 2004 included the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why the claim was previously denied. He was informed that his claim for bilateral hearing loss had been previously denied based on the finding that the evidence did not show his disability began in service or was caused by some event or experience in service. He was told that he had to submit evidence that related to that fact. Consequently, the Board finds that adequate notice has been provided, as he was informed about what evidence was necessary to substantiate the elements required to establish service connection that were found insufficient in the previous denial.
Next, VA has a duty to assist a Veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2011).
After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO obtained VA treatment records. Statements from the Veteran and his representative were also considered and associated with the claims file. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.
The Board recognizes that the RO obtained a June 2005 VA examination. However, VA need not conduct an examination with respect to the claim of whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection because the duty under 38 C.F.R. § 3.159(c)(4) applies to a claim to reopen only if new and material evidence is presented or secured. Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that VA need not provide a medical examination or medical opinion until a claim is reopened). See also Woehlaert v. Nicholson, 21 Vet. App. 456 (holding that adequacy of VA medical examination mooted upon Board's determination that claimant not entitled to reopening of claim, and conduct of VA medical examination, when claimant had not presented new and material evidence.) Thus, the question of the adequacy of the examination is not before the Board.
The Board also notes that following the issuance of the January 2006 statement of the case (SOC) additional VA and non-VA reports and treatment records were associated with the claims file. A supplemental SOC was not issued with respect to the hearing loss issue nor is there any indication that the Veteran waived RO consideration of this evidence. However, the Board concludes that there is no prejudice in proceeding with consideration of this case without affording the RO an opportunity to review the evidence in question. See 38 C.F.R. § 19.31 (2011).
Specifically, the treatment records and examinations were submitted in support of other claims on appeal and are relevant to the same. None of the records included any pertinent or relevant evidence to the issue of whether new and material evidence has been submitted to reopen a claim for service connection for hearing loss. There is only an anecdotal reference to the presence of hearing loss, which was a fact which was demonstrated in a February 2004 VA audiological examination on record at the time of the May 2004 initial rating decision denying his claim. There is no prejudice in proceeding with consideration of this case without affording the RO an opportunity to review the evidence in question.
Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
II. New and Material Evidence
Unappealed rating decisions are final with the exception that a claim may be reopened by submission of new and material evidence. When a Veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material."
Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of the Veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). When making determinations as to whether new and material evidence has been presented, the RO must presume the credibility of the evidence. Justus v. Principi, 3 Vet. App. 510 (1992).
New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).
Historically, the Veteran initially filed a claim of entitlement to service connection for a bilateral hearing loss disorder in November 2003. In a May 2004 rating decision, the RO denied his claim on the basis that the evidence failed to establish any relationships between his current hearing loss and his service, to include noise exposure. Within one year of the May 2004 rating decision the Veteran asked to reopen his claim. Although additional VA treatment records were associated with the claims file, dated within one year of the May 2004 rating decision, they did not pertain to his hearing loss. The records were not pertinent.
The Court in Buie v. Shinseki, vacated and remanded an earlier effective date claim because the Board did not discuss the application of § 3.156(b) in its decision, but instead focused on the question of whether statements submitted within the appeal period following a rating decision satisfied 38 C.F.R. § 20.201 and were Notices of Disagreement. Buie, Vet. App. at 252. Essentially, the Court indicated that, because the statements were submitted within one year of the corresponding regional office decision, the Board should have considered whether the statements included the submission of new and material evidence. Id.
Here, the Board finds that the evidence submitted within one year of the May 2004 rating decision while "new" is not "material' to the Veteran's claim filed in November 2003. The evidence did not pertain to the Veteran's hearing loss, much less address whether a relationship existed between a current hearing loss disorder and service. Therefore, as he did not appeal the May 2004 rating decision, the May 2004 rating decision became final. See Buie, Vet. App. at 252 ("The Federal Circuit went on to hold that a regional office decision becomes final 'only after the period for appeal has run,' and that '[a]ny interim submissions before finality must be considered by the VA as part of the original claim.'")
In July 2005, the RO reopened the claim for service connection for hearing loss based on the receipt of a June 2005 VA examination report. The claim was subsequently denied on the merits. The Veteran appealed.
Because the Board has the jurisdictional responsibility to consider whether it was proper to reopen the claim, regardless of the RO's determination on the question of reopening, the Board will determine whether new and material evidence has been received and, if so, consider entitlement to service connection on the merits. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).
The Board finds that new and material evidence has not been submitted since the last final rating decision. The evidence of record at the time of the last final rating decision in May 2004 consisted of service treatment records, VA treatment records, and a February 2004 VA audiological examination report. The RO essentially determined that the medical evidence did not establish that his bilateral hearing loss was related to his service.
The evidence added to the record since the last final rating decision includes VA treatment records and a June 2005 VA examination. While "new" in the sense of not being previously of record, the evidence is not material because it does not establish a link between the Veteran's service and his current bilateral hearing loss. In fact, the June 2005 VA examiner, after reviewing the claims file and considering a history provided by the Veteran determined that it was less likely than not that the Veteran's bilateral hearing loss was caused by or the result of military noise exposure.
The new evidence provided since the last final rating decision additionally includes statements from the Veteran, asserting a relationship between his disorder and service. The Veteran continues to assert that his disorder had its onset during his active service. This evidence is essentially a repetition of the arguments proffered when his claim was previously considered and is therefore neither new nor material. Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence).
Moreover, the lay statements proffered by the Veteran cannot be considered material as to the crucial medical question presented, whether service caused the Veteran's bilateral hearing loss disorder. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1) (2011). Indeed, as noted, in Moray v. Brown, 5 Vet. App. 211 (1993), the Court noted that lay persons, such as the Veteran, are not competent to offer medical opinions and that such evidence does not provide a basis on which to reopen a claim for service connection. In Routen v. Brown, 10 Vet. App. 183, 186 (1997), the Court noted '[l]ay assertions of medical causation . . . cannot suffice to reopen a claim under 38 U.S.C.A. 5108.' The Board is clearly aware of the relaxed standard that has developed over the recent years with respect to accepting lay evidence in lieu of a medical opinion. However, the Board is equally aware of no Court decision that has overruled the holding in Routen.
Finally, in a recent case, the Board notes that the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as enabling rather than precluding the reopening of a claim. The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which does not require new and material evidence as to each previously unproven element of a claim. It was indicated that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would force the Veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA. Shade v. Shinseki, 24 Vet. App. 110 (2010).
Unlike Shade, the Board has not failed to properly apply 38 C.F.R. § 3.156(a) to the evidence presented in the current claim to reopen. Here, as noted in detail above, the new evidence of record was not found to be material as it did not relate to an unestablished fact necessary to substantiate the claim. Evidence previously of record failed to relate the Veteran's bilateral hearing loss disorder to his active service. The newly submitted evidence of record, while showing current treatment for bilateral hearing loss, still fails to show that his current bilateral hearing loss is related to his active service, to include noise exposure. When considering newly submitted evidence in conjunction with the evidence previously of record, the Board has not required the Veteran to submit evidence as to each previously unproven element of his claim. There was only one unproven element and that element remains to be proved.
Therefore, the Board concludes that the evidence received since the May 2004 RO decision, when viewed by itself or in the context of the entire record, does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim of entitlement to service connection for a bilateral hearing loss disorder. As such, new and material evidence sufficient to reopen the Veteran's claim has not been received. Therefore, his claim must be denied.
ORDER
New and material evidence not having been received, the Veteran's application to reopen a claim of entitlement to service connection for a bilateral hearing loss disorder is denied.
REMAND
As previously noted, the VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.
Increased Rating Atherosclerotic Cardiovascular Disease- The Court has held that when a Veteran alleges that his service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment, particularly if there is no additional medical evidence which addresses the level of impairment of the disability since the previous examination. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity).
Similarly, VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995) (while the Board is not required to direct a new examination simply because of the passage of time, a new examination is appropriate when the claimant asserts that the disability in question has undergone an increase in severity since the time of the last examination).
The Veteran indicated in his September 2010 substantive appeal that his "heart is failing and my METS are very low." He stated that when someone files for unemployability it should be presumed that the service-connected disabilities have gotten worse. The Veteran indicated that his service-connected disabilities were not checked to see if it had gotten worse. He expressed concern over how a determination could be made on his employability without assessing the current severity of his service connected disabilities. As the Veteran has essentially claimed that his disability has worsened since the last VA examination, the Board finds that another VA examination should be afforded. Moreover, the adequacy of the May 2009 VA examination is questionable as the VA examiner did not have the claims file for review. Further, the VA examiner indicated that he had reviewed computerized patient records of the Central Alabama Veterans Health Care System, and it is unclear whether or not all of these records are located in the claims file.
Outstanding Medical Records- The Veteran reported at his May 2009 VA cardiovascular examination that he had been hospitalized earlier that month for his heart. However, hospitalization records in the claims file are only available for April 2004 and December 2008 hospitalizations. While a May 2009 letter from the RO requested medical documents pertaining to heart surgery in March 2009, a specific request for records associated with the alleged May 2009 hospitalization has not yet been made. As these records would be relevant to both his claims for an increased rating and entitlement to a temporary total evaluation based on hospitalization for a service-connected disability and/or convalescence for a service-connected disability, and because the matter is being returned for a new VA examination, an attempt to obtain such records should be made.
Clarification of Private Physician- The Veteran alleged in his November 2009 notice of disagreement that he was instructed by his physician not to work or do anything for 90 days. Based on this advice he believes he is entitled to a temporary total evaluation. Evidence at this time does not corroborate these allegations. On remand, the Veteran should be provided the opportunity to contact his private treating physician to have this purported medical advice placed in a written statement and submitted to the BVA.
TDIU- The law provides that a TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2011).
As an initial matter, the Board acknowledges that the Veteran is currently service-connected for posttraumatic stress disorder (30 percent since May 24, 2004), type II diabetes mellitus (20 percent since November 21, 2003), tinnitus (10 percent since November 21, 2003), atherosclerotic cardiovascular disease status post coronary artery bypass graft associated with type II diabetes mellitus (10 percent since August 1, 2004), peripheral neuropathy of the right upper extremity (10 percent since September 8, 2009), peripheral neuropathy of the left upper extremity (10 percent since September 8, 2009), peripheral neuropathy of the left lower extremity (10 percent since September 8, 2009), peripheral neuropathy of the right lower extremity (10 percent since September 8, 2009), and erectile dysfunction (non compensable since August 16, 2006). His diabetes mellitus, arteriosclerotic heart disease, and peripheral neuropathies are all disabilities stemming from a common etiology. A single disability rating of 50 percent is therefore assignable with a total combined rating of 70 percent. 38 C.F.R. § 4.16(a). As such, he meets the schedular requirements of 38 C.F.R. § 4.16 (a).
The Board acknowledges that the Veteran underwent a September 2009 VA examination to address his employability. However, at the time of the September 2009 VA examination he was not yet service-connected for peripheral neuropathy of either his upper or lower extremities. Service-connection for these disabilities was subsequently awarded in a January 2011 rating decision. Although he did not meet schedular requirements at the time of the September 2009 VA examination, he now meets the schedular requirements of 38 C.F.R. § 4.16 (a). Moreover, although the Veteran reported that he was still working at his September 2009 VA examination, in a February 2011 statement the Veteran indicated that he was not working. Based on the fact that the Veteran now meets the schedular criteria for TDIU and also based on the fact that he is no longer working, another VA examination should be undertaken. Crucially, there is also no opinion which considers whether both the Veteran's service connected physical disabilities and psychiatric disability, taken together (in the aggregate), preclude him from securing and maintaining some form of substantially gainful employment.
Accordingly, the case is REMANDED for the following actions:
1. The AMC/RO should contact the Veteran and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, that treated the Veteran for his atherosclerotic cardiovascular disease status post coronary artery bypass graft associated with type II diabetes mellitus. After the Veteran has signed the appropriate releases, those records not already associated with the claims folder, should be obtained and associated with the claims folder, especially the March 2009/May 2009 hospitalization records. Moreover, records referenced in the May 2009 Heart VA examination from the computerized patient records of the Central Alabama Veterans Health Care System should be associated with the claims file.
If the AMC/RO cannot obtain records identified by the Veteran a notation to that effect should be included in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review.
2. The Veteran should be advised to contact his physician who purportedly instructed him not to work or do anything for 90 days due to his service-connected atherosclerotic cardiovascular disease status post coronary artery bypass graft associated with type II diabetes mellitus. This medical advice should be put in writing and submitted to the BVA.
3. Following the development set forth above, schedule the Veteran for a VA heart examination to assess the current severity of the Veteran's atherosclerotic cardiovascular disease status post coronary artery bypass graft associated with type II diabetes mellitus. The examiner should review the claims file. The examiner must indicate review of the claims file in their examination report. Any testing deemed necessary should be performed.
The examiner is asked to complete indicated diagnostic tests and studies, to include a laboratory determination of metabolic equivalents (METs) by exercise testing, an electrocardiogram, an echo- cardiogram, and an x-ray study. With regard to the MET testing, the examiner must document the level of METs at which dyspnea, fatigue, angina, dizziness or syncope develops.
If a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by the medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used.
The examiner is asked to indicate whether the Veteran has:
* Coronary bypass surgery with a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray; OR
* Coronary bypass surgery with more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent; OR
* Coronary bypass surgery with chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope or; left ventricular dysfunction with an ejection fraction of less than 30 percent.
The AOJ should ensure that the examination report complies with this remand and the questions presented.
4. After associating any pertinent, outstanding records with the claims folder, and completion of the directives set forth in the Remand paragraphs above, schedule the Veteran for a VA examination in connection with his TDIU claim. The claims folder should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted.
The examiner should opine as to whether, without regard to the Veteran's age or the impact of any non service-connected disabilities, it is at least as likely as not that his service-connected disabilities (posttraumatic stress disorder, type II diabetes mellitus, tinnitus, atherosclerotic cardiovascular disease status post coronary artery bypass graft associated with type II diabetes mellitus, peripheral neuropathy of the right upper extremity, peripheral neuropathy of the left upper extremity, peripheral neuropathy of the left lower extremity, peripheral neuropathy of the right lower extremity, and erectile dysfunction) either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation.
If the examiner opines that the Veteran's service-connected disabilities do not cumulatively render him unemployable, the examiner should suggest the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background.
To the extent the Veteran is scheduled for multiple VA examinations, the Board requests that each examiner take into account all of the Veteran's service-connected disorders cumulatively when rendering an opinion as to unemployability.
A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report.
5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
______________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs